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Race, Death and the Complicitous Media DePaul Law Review Volume 58 Issue 3 Spring 2009: Symposium - Media, Race, Article 3 and the Death Penalty Race, Death and the Complicitous Media Justin D. Levinson Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Justin D. Levinson, Race, Death and the Complicitous Media, 58 DePaul L. Rev. 599 (2009) Available at: https://via.library.depaul.edu/law-review/vol58/iss3/3 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. RACE, DEATH, AND THE COMPLICITOUS MIND Justin D. Levinson* INTRODUCTION Despite the historical racial imbalance in capital punishment,1 inter- disciplinary scholarship has failed to investigate fully how the human mind may automatically and systematically facilitate racial bias against African-American defendants in capital cases. Considered in the legal context, well-developed social science principles may help reveal how people's automatic and unintentional cognitive processes may either propagate racial disparities in the death penalty or serve as a masking agent in covering up those disparities. As social science research continues to demonstrate the power and pervasiveness of im- plicit racial bias in American society,2 it is important to consider how * Associate Professor of Law and Director, Culture and Jury Project, William S. Richardson School of Law, University of Hawai'i at M~noa. I would like to thank Andrea Lyon for inviting me to participate in the DePaul Law Review Symposium, Media, Race, and the Death Penalty. Al Brophy, Cynthia Lee, and Peter Levinson provided thoughtful critiques of earlier drafts. David Hu and Kee Campbell provided outstanding research assistance. Dean Aviam Soifer pro- vided generous summer research support. 1. See generally FROM LYNCH MOBS TO THE KILLING STATE: RACE AND THE DEATH PEN- ALTY IN AMERICA (Charles J. Ogletree, Jr. & Austin Sarat eds., 2006) [hereinafter FROM LYNCH MOBS]; STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY (2002); RANDALL KENNEDY, RACE, CRIME, AND THE LAW (1997). See also Craig Haney, Condemning the Other in Death Penalty Trials: Biographical Racism, Structural Mitigation, and the Empathic Divide, 53 DEPAUL L. REV. 1557, 1559 (2004) (stating that "between 1930 and 1982, African Americans constituted between 10% and 12% of the United States population but 53% of those executed" (citing Bureau of Justice Statistics, U.S. Dep't of Justice, Capital Punishment 1982, Aug. 1984, at 9)); Charles J. Ogletree, Jr., Black Man's Burden: Race and the Death Penalty in America, 81 OR. L. REV. 15, 18 (2002) (noting that "the racially disproportionate application of the death penalty can be seen as being in historical continuity with the long and sordid history of lynching in this country"). 2. See generally Brian Nosek et al., Pervasiveness and Correlates of Implicit Attitudes and Ste- reotypes, 18 EUR. REV. SOC. PSYCHOL. 36 (2008) [hereinafter Nosek et al., Pervasiveness and Correlates]. See infra notes 32-89 and accompanying text. As I discuss in Part II, these biases have been demonstrated using a variety of methodologies. The most famous of these methodol- ogies is the Implicit Association Test. See Project Implicit, https://implicit.harvard.edu/implicit (last visited Feb. 18, 2009). Before implicit social cognition research became prominent, legal scholars often referred to "unconscious" bias rather than "implicit" bias, sometimes relying upon Freudian conceptions of the unconscious. See, e.g., Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 331-36 (1987). Legal scholarship relying upon implicit social cognition now more frequently uses the term "implicit" to describe attitudes, memories, and stereotypes that are outside of "conscious, 600 DEPAUL LAW REVIEW [Vol. 58:599 automatic and unintentional cognitive processes may foster racial bias in the legal system.3 This Article pursues three goals related to this endeavor: first, to introduce implicit social cognition research to death penalty scholars and scholar advocates; second, to propose new hypotheses that help explain why capital cases may be automatically infused with racial bias and why research to date may cover up ex- isting racial disparities; and third, to stimulate interdisciplinary collab- oration and empirical examination of a wide range of social cognitive factors in capital punishment. Since the 1990s, social scientists have demonstrated that many Americans harbor implicit racial biases that frequently conflict with their self-reported racial attitudes.4 These biases manifest automati- cally and without conscious awareness in a variety of basic circum- attentional control." Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scien- tific Foundations,94 CAL. L. REV. 945, 947 (2006); see also Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1497-1539 (2005) (explaining the foundations of scientific research on implicit attitudes). Although the words "implicit" and "unconscious" describe similar processes, some psychologists have cautioned against using them interchangeably. See Russell H. Fazio & Michael A. Olson, Implicit Measures in Social Cognition Research: Their Meaning and Use, 54 ANN. REV. PSYCHOL. 297, 303 (2003). In this Article, I generally use the term "implicit" rather than "unconscious," except when discussing scholarship in which the authors specifically use the term "unconscious." 3. These efforts should be combined with long-standing efforts to measure statistically overall systemic inequalities. See, e.g., Scott Phillips, Racial Disparities in the Capital of Capital Punish- ment, 45 Hous. L. REV. 807, 809 (2008); David C. Baldus & George Woodworth, Race Discrimi- nation in the Administration of the Death Penalty: An Overview of the EmpiricalEvidence with Special Emphasis on the Post-1990 Research, 39 CRIM. L. BULL. 194 (2003) [hereinafter Baldus & Woodworth, Race Discriminationin the Administration of the Death Penalty]; DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS (1990) [hereinafter BALDUS ET AL., EQUAL JUSTICE]; SAMUAL R. GROSS & ROBERT MAURO, DEATH AND DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING (1989). See also David C. Baldus & George Woodworth, Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and Perception, 53 DEPAUL L. REV. 1411 (2004) [hereinaf- ter Baldus & Woodworth, Race Discrimination and the Legitimacy of Capital Punishment]; Thomas J. Keil & Gennaro F. Vito, Race and the Death Penalty in Kentucky Murder Trials: 1976-1991, 20 AM. J. CRIM. JUST. 1 (1995); U.S. GENERAL ACCOUNTING OFFICE, DEATH PEN- ALTY SENTENCING: RESEARCH INDICATES PAITERN OF RACIAL DISPARITIES (GAO/GGD-90- 57, Feb. 1990). 4. See Mahzarin R. Banaji, Implicit Attitudes Can Be Measured, in THE NATURE OF REMEM- BERING: ESSAYS IN HONOR OF ROBERT G. CROWDER 117 (Henry L. Roediger III et al. eds., 2001) [hereinafter Banaji, Implicit Attitudes]; Brian A. Nosek et al., Harvesting Implicit Group Attitudes and Beliefs From a Demonstration Web Site, 6 GROUP DYNAMICS 101 (2002) [hereinaf- ter Nosek et al., Harvesting Implicit Group Attitudes]; Anthony G. Greenwald et al., Measuring Individual Differences in Implicit Cognition: The Implicit Association Test, 74 J. PERSONALITY & SOC. PSYCHOL. 1464 (1998) [hereinafter Greenwald et al., Measuring Individual Differences]; Anthony G. Greenwald & Mahzarin R. Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 PSYCHOL. REV. 4, 15 (1995). 2009] RACE, DEATH, AND THE COMPLICITOUS MIND 601 stances, such as when people categorize information,5 remember facts, 6 and make decisions. 7 Furthermore, these automatic cognitive processes work predictably and powerfully despite conflicting with people's frequently egalitarian reports of their own racial attitudes.8 As legal scholars have become more aware of these powerful biases and their implications for law and society, many have argued that the new empirical understanding of discrimination warrants shifting legal regimes.9 Legal scholarship in a variety of areas now thoughtfully in- corporates knowledge on implicit bias into disciplines such as employ- ment law,10 communication law,11 affirmative action, 12 and legal 5. See B. Keith Payne, Prejudice and Perception: The Role of Automatic and Controlled Processes in Misperceiving a Weapon, 81 J. PERSONALITY & SOC. PSYCHOL. 181, 181 (2001) (finding that people can more quickly identify guns after having seen, but not noticed, flashing photos of Black people); Daniel T. Gilbert & J. Gregory Hixon, The Trouble of Thinking: Acti- vation and Application of Stereotypic Beliefs, 60 J. PERSONALITY & SOC. PSYCHOL. 509, 510 (1991) (finding that simply seeing a member of a certain ethnic group can influence stereotype- driven word completion tasks); Greenwald et al., Measuring Individual Differences, supra note 4, at 1474 (showing that people are faster at grouping together, for example, Black names with negative words than with positive words, relative to White names); Nosek et al., Pervasiveness and Correlates,supra note 2 (reviewing the results of hundreds of thousands of these tests taken on Project Implicit's website and elsewhere). 6. See generally Justin D. Levinson, Forgotten Racial Equality:
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